Saturday, October 30, 2010

At the recommendation of its Public Policy Committee, on May 12, 2010, the MHAC board of directors unanimously passed a resolution to sign on as a friend of the court in the case of Gross v. Rell.

In a striking miscarriage of justice, Daniel Gross, an 86 year old New York man, hospitalized with cellulitis while visiting his daughter in Waterbury, was appointed a conservator by the probate court, without his permission, or even his presence in the courtroom. Mr. Gross was locked in a nursing home for ten months by this court-appointed conservator while his family bickered over who should have control over his assets.

This case is important for all persons with disabilities, especially psychiatric disabilities, because the duty owed by the attorney to the person represented, including those being subjected to a competency hearing, is the same as it would be to any other client. It appears not all officers of the court are quite on board with this concept yet.

Under Connecticut practice, lawyers should abide by their clients’ decisions concerning the objectives of representation, yet right now lawyers, court-appointed conservators, and even nursing homes have immunity from this practice. The purpose of this lawsuit is to hold the people with such great power and authority over other people’s lives accountable for their actions and put an end to that immunity. Court appointed conservators and/or attorneys will have to represent their clients with disabilities with the same amount of enthusiasm and responsibility as their clients without disabilities.

The conservatorship was eventually overturned and Mr. Gross went home to live in New York, but the slipshod, under-regulated probate court system is still exactly as it was when Mr. Gross was unwillingly dragged into it. This must not continue.

The state official who investigates alleged misconduct by lawyers has charged former Johnston Town Solicitor Milan T. Azar with violating three rules of professional conduct.

Azar is accused of deliberately overbilling the state Department of Children, Youth and Families for a guardianship, lying about it to the DCYF and to the chief disciplinary counsel of the Rhode Island Supreme Court, and improperly soliciting clients.

Azar has denied the bulk of the case. But in a formal answer to the charges, he admitted that he submitted to the DCYF the bills that are under scrutiny, and that he falsely blamed a helper for the initial submission.

The charge has been made by David D. Curtin, chief disciplinary counsel, and will be considered at a hearing by a three-member subcommittee of the Supreme Court’s disciplinary hearing board, composed of two lawyers and one public member who is not a lawyer. The hearing has not yet been scheduled.

Friday, October 29, 2010

The goal of the Aging Summit held last week in Columbus was to foster more interagency collaboration to enhance the safety and well-being of older Ohioans.

The topic of elder abuse, growing across the nation, is close to the heart of one Ohio advocate from Mentor who spoke to CGE on it.

Tom Fields has become an outspoken advocate for a protocol he says would do much to stop the growing scourge of abusing the elder when they are at their weakest. Fields' interest in helping the elder fend away lawyers and others who are more like vultures than angels came about through a sequence of events related to his father. Fueled by his experience with his father, Fields offered an ABC News 20/20 video that shows what can happen when a lawyer and beneficiaries present a new will to a sick, elderly women in her hospital bed and ask her to "make her mark."

The short video shows Mary Ellen Bendtsen, 88, a wealthy elderly woman in Dallas who was not mentally competent to sign a new will presented to her, sign it anyway.

Fields argues that the video demonstrates a need for a good protocol that not only makes clear what questions need to be asked but who should ask these questions, how and when an interview should be conducted and how the answers to these questions should decide the validity of the document in question.

If a protocol he has asked the Ohio Elder Abuse Commission (OEC) to consider with regard to wills, deeds, trusts, power of attorney and other financial and legal documents existed, Fields says the attorney in the ABC video could have used it as an argument for why he shouldn't have been disbarred and indicted on criminal charges, as happened.

"It is in the interest of all legitimate parties that such a protocol be required under circumstances like that captured in this video report," Fields wrote in an email to CGE about a public comment he made to OEC a year ago September that asked the OEC and others "to develop and require a reliable protocol for use in circumstances like that confronted by the 20/20 report."

Fields told CGE that such a protocol would provide safeguards against attempts by person who exert undue influence over a testator to incorporate professionals such as doctors, lawyers, or accountants into their efforts to control the individual.

Fields points to reports by the National Association to Stop Guardian Abuse as proof of the growing scope of the problem. He report that he has received "promising initial responses from some lawmakers to my phone calls and e-mails," but cautions that "I understand that these responses are only preliminary and at this point do little more than demonstrate good intentions."

One of the judges Gov. Ted Strickland appointed to the Cuyahoga County bench was arrested in September as part of a federal probe into wide-ranging political corruption among Cleveland-area officials.

Another Strickland-appointed judge, in Franklin County, is confronting tough ethics questions about appointing family members to jobs despite rules against nepotism.

Both Judge Steven J. Terry of Cuyahoga County Common Pleas Court and Judge Alan S. Acker of Franklin County Probate Court were vetted by a panel that Strickland established shortly after taking office in January 2007. The Ohio Judicial Appointments Recommendation Panel was one of Strickland's signature initiatives "to restore trust and integrity in Ohio's government" when the Democratic governor took office after Republican scandals.

Strickland's aides say Terry and Acker are isolated cases among the dozens of judges the governor has appointed to vacancies since 2007. The vetting panel is doing its job, Strickland's office insists.

"With only two of the nearly 50 appointments generating headlines beyond their cases, it seems unwarranted to blame a system that has worked well and is far better than the Republican patronage selection process," Strickland spokeswoman Amanda Wurst said in a statement.

Thursday, October 28, 2010

Some court-appointed guardians for incapacitated seniors are not screened before they're appointed, and many are not monitored by the courts after they've taken over the affairs of their charges, resulting in hundreds of allegations of abuse, a federal probe found.

An investigation by the Government Accountability Office found allegations of abuse by legal guardians in 45 states and the District of Columbia, according to an advance copy of the report obtained by CNN. The report is scheduled to be released Wednesday.

In 20 cases studied by the office in which criminal or civil penalties resulted, investigators found that guardians stole at least $5.4 million in assets from 158 victims, the report said. In some instances, these same guardians abused or physically neglected the people they were supposed to help and protect.

In six of the 20 cases examined, the courts failed to screen guardians before giving them control over the financial affairs and care of their wards, the federal agency found. In one case in Missouri, a former taxi driver and convicted bank robber was appointed the legal guardian of a wealthy customer who had no family. As the elderly man developed Alzheimer's disease, his guardian stole more than $640,000 from him, writing checks out of the victim's estate to pay for exotic dancers and a new Hummer, court records show.

In Arizona, an 80-year-old woman's niece was appointed guardian of her wealth and well-being, despite having declared bankruptcy twice and being arrested numerous times for writing bad checks, according to court documents cited in the GAO probe. The elderly woman's attorney had objected to the appointment, saying the two were not close, but the court disregarded the protest. In the end, the niece misappropriated more than $150,000 from her aunt's estate, court records show.

A certified professional guardian failed to visit one of her wards for eight months, according to documents from a case in the state of Washington. The same guardian was then appointed to oversee another elderly person's estate, despite having $87,000 in tax liens filed against her.

Courts failed to oversee the conduct of appointed guardians in 12 of the 20 cases studied in the federal investigation, therefore allowing the abuse and financial exploitation to continue unobserved, sometimes for years, the federal report said.

It cited the case of a couple in Kansas who ran an unlicensed group home for mentally ill adults. The husband became the guardian of a 50-year-old female patient, allowing the couple to steal $250,000 from the woman, court documents show.

"In addition, they forced her and other residents to perform sexual acts for almost two decades as part of the fraudulent therapy treatment that they billed to Medicare, a federal court and jury found," according to the federal report.

The abuse was discovered when children on a school bus reported seeing naked people working on the farm, the GAO report said.

"At the husband's sentencing, the judge compared conditions at the house to those of a third world prison, and concluded at the wife's sentencing that '...but for the sighting by the children on the school bus, I am firmly convinced that [the group home] would be in business today,'" the report said.

Federal investigators also tested guardian certification required in a handful of states. To test to see whether this certification process would deter criminal-minded guardians from entering the system, investigators applied for the certification in Illinois, Nevada, New York and North Carolina. None of these states checked the undercover investigators' credit, nor did they validate their Social Security numbers to confirm their identities.

The GAO report was requested by the Senate Special Committee on Aging, chaired by Sen. Herb Kohl, D-Wisconsin. The committee says its next steps will be to consider federal legislation that will help state court systems improve their training of guardians, judges and legal personnel who handle adult guardianship cases.

The committee is also considering legislation that would help reduce fraud by unscrupulous guardians who receive the Social Security and veterans' benefits of incapacitated beneficiaries.

A Superior Court judge has ruled that a probate commissioner acted unethically but there's no evidence she was biased -- not even when she communicated with only one set of lawyers in the Marie Long case, the side that wound up with most of the old lady's money.

However, the judge also found that the supposedly unbiased commissioner, Lindsay Ellis, deprived Marie of a fair trial when she improperly came out of retirement and approved a $233,000 legal bill submitted by one of her forbidden e-mail buddies, attorney Brenda Church.

At age 87, Ruth Klotz is the oldest judge in Iowa — and the only one who wasn't required to retire in her 70s.

She's on this fall's general election ballot for another six-year term, which would allow her to serve until age 94. As an associate probate judge, she rules on children's guardianships, elderly affairs, contested wills and other probate cases.

Klotz is almost universally well-liked and respected by the lawyers who appear regularly in her Polk County courtroom. But some Iowans question whether the state lawmakers who exempted her from mandatory retirement laws meant for her to be on the bench this long.

A small but vocal set of Iowans is campaigning against Klotz, mainly on the Internet. A "Vote No on Judge Ruth Klotz" Facebook page has 62 supporters. Most cite concerns that Klotz is too quick to strip elderly or disabled Iowans of their civil rights by granting emergency orders that give state officials all authority over their lives.

A federal magistrate released Norwich accountant F. Robert LaSaracina on $500,000 bond this morning [10/20] after he was presented in U.S. District Court on federal charges of mail fraud, wire fraud and money laundering.

LaSaracina has been charged in state Probate Court of defrauding a family estate of millions of dollars and is named in a number of Superior Court suits by plaintiffs who allege he has defrauded them by taking money for purported investments.

The U.S. Attorney's Office is charging him with devising and executing a scheme to obtain monety and property from victms for his personal and business expenses.

U.S. Magistrate Judge Donna F. Martinez ordered LaSaracina to surrender his passport by noon Friday; restricted him to Connecticut; ordered him to avoid contact with any person who might become a witness for the prosecution and anyone who has invested money with him; and directed him to refrain from excessive use of alcohol and drugs.

Tuesday, October 26, 2010

A probate commissioner acted unethically and she violated the rules, but she did nothing wrong in the case of the old lady who went into probate court worth $1.3 million and five years later was penniless, according to a ruling released Monday morning.

Based on a quick read of the 11-page ruling, Marie Long lost the overall question of whether she was treated fairly during her five-year foray through Maricopa County Superior Court's probate division. But she won a new trial on the most outrageous of issues: the $233,000 charged by attorney Brenda Church and her firm, Frazer, Ryan, Goldberg & Arnold, for 11 months of work last year.

In all, Superior Court Judge Robert Budoff found that Commissioner Lindsay Ellis violated the Code of Judicial Conduct of the Arizona Supreme Court when she e-mailed a draft copy of her ruling in the Long case only to certain attorneys – the ones who wound up with (or their clients wound up with) much of her cash. But that “ex-parte communication”, while inappropriate, isn’t enough to show that Ellis was biased, he wrote.

“The ex parte communication occurred after the trial and after the ruling had actually been prepared, and the only change that had occurred as a result of the improper ex parte communication was immaterial to the substance of the ruling itself,” he wrote. “The fact that the lawyers who were in receipt of the ex parte communication did not disclose it for two months, and the fact that the judge never disclosed it, apparently, until after it was brought to the attention of other judicial officers, after the fact, is inconsequential to the substance of the ruling itself regardless of whether or not counsel and the Judge may have violated any of their ethical obligations.”

Budoff found that the other ex parte communications “were only related to scheduling issues and are inconsequential.”

Overall, Budoff found there was no evidence that Ellis was biased and that she properly approved hundreds of thousands of dollars in fees charged by the Sun Valley Group. He dismissed complaints that Sun Valley was self dealing by both acting as guardian and providing care because the guardian ad litem, Brian Theut, and Long’s court-appointed attorney, Jon Kitchel, “arguably acceded” to Sun Valley providing care while Marie was still living at home. Apparently, the Supreme Court rules prohibiting such conduct don’t matter. The judge never even mentioned them.

One of DeKalb County’s two candidates for district attorney has been suspended twice by the State Bar of Georgia.

Decatur attorney Constance Pinson Heard is running against former DeKalb Solicitor-General Robert James.

The two are competing for the seat vacated by Gwen Keyes Fleming, who resigned last month to become a regional administrator with the federal Environmental Protection Agency.

Records obtained by The Atlanta Journal-Constitution show Heard was suspended twice for violating State Bar standards. James has no complaints with the Bar, according to its records.

The state Supreme Court found Heard guilty of three Bar standards: dishonesty and fraud; willful abandonment to the detriment of her clients; and commingling clients’ funds with her own.

The director of the National Institute for Teaching Ethics & Professionalism, who is not involved in the DeKalb race, said he would be concerned about any lawyer who violated those specific standards.

“I have no hesitation in saying that someone who has been suspended for violating [these standards] should not be a candidate for district attorney.” said Clark D. Cunningham, who also teaches law and ethics at the Georgia State University College of Law.

Monday, October 25, 2010

Judges here award more than anywhere else in Texas — $302,081 in one case, so far — to attorneys they pick

Harris County probate judges handed out $8.5 million in fees in one year — far more than any other county in Texas — to private, hand-picked lawyers and others tasked with managing the estates of the dead and the lives of the disabled.

County court-at-law judges kicked in another $800,000.

One probate judge has approved payments of $302,081 so far to attorneys involved in a single case: a legal dispute that dates back decades and involves the guardianship of Ugo di Portanova, a disabled globe-trotter and heir to a series of multimillion-dollar oil-funded trusts in Texas.

Those fees, approved by Judge Mike Wood, were the highest awarded in any Texas case in the last year, public records show.

Collectively, 200 county and probate judges statewide signed off on nearly $21 million related to death, guardianship and other disputes in the year ending August 2010, according to a Chronicle analysis of more than 9,500 fees approved by all county and probate judges in Texas.

The Office of Court Administration began collecting electronic reports on fees for the first time last year. The reports stem from an earlier state Supreme Court initiative to boost accountability and counter long-term concerns about judges' alleged favoritism toward fee recipients, who are often attorneys and campaign contributors.

Each year, thousands of people's lives and deaths end up in the hands of probate judges, who wield sweeping power over the liberty and assets of others. Probate fees can be controversial, as they often come from private pocketbooks and can quickly deplete estates or drain resources needed to care for disabled and elderly Texans.

Villareal was dismissed March 2 after nearly 15 years on the job, according to information from the county human resources department.

She worked for the county’s guardianship program, one of two such programs statewide, Community Services Director Curtiss Brown said.

Villareal was appointed by Probate Judge Gladys Burwell as a guardian for elderly wards and was responsible for managing their money, Galveston County Criminal District Attorney Kurt Sistrunk said in a statement.

"Judge Burwell, in her normal course of review, noticed some irregularities in the checks that were being written on the accounts of the wards and brought the matter to our attention," Sistrunk said.

Prosecutors began the investigation in February with the assistance of the County Auditor’s Office.

The indictment accuses Villarreal of stealing more than $20,000 but less than $100,000 between June 2007 and April 2009, Sistrunk said.

Sistrunk declined to reveal the specific dollar amount or how many wards were involved.

In Dallas County, I blame the Democrats. In Tarrant and Collin counties, I blame the Republicans. In total, I blame every single reader who ever has voted the straight party line. For good measure, I’ll even blame the Libertarians, although they seem like innocent sorts.

In Tarrant County, it is the GOP that dominates with straight-ticket voting. For County Probate Court No. 2, they elected Pat Ferchill. This judge appears to have turned his probate court into a racket, holding ex parte hearings with favored attorneys, terminating guardianship rights of parents over their disabled children, and taking advantage of the elderly. Fort Worth Weekly and the Texas Tribune have done an excellent job of tracking the judge’s suspect rulings.

Sunday, October 24, 2010

As an attorney I have spent decades representing elderly men and women who have endured unspeakable abuse and neglect in nursing homes. Often, these conditions were so reprehensible and so degrading that – were they unearthed at daycare centers or even federal penitentiaries – members of Congress and the media would be crusading for reform. The AAJ’s report is rife with illustrations: A nursing home resident whose leg was amputated after becoming infested with maggots; an Alzheimer’s patient who died trapped in a freezer; a Florida nursing home resident who suffered from multiple falls, severe weight loss, multiple pressure sores, infections, dehydration, and eventually death by starvation; patients at a home in Illinois who were given antipsychotic drug injections “assembly-line style” as a means of “chemical restraint;” and an elderly nursing home resident who was sexually assaulted in the middle of the night at the hands of an orderly who was an ex-con.

If something major doesn’t change, and change soon, this is the kind of fate that awaits multitudes of Americans expected to join the ranks of the institutionalized elderly in the coming decades.

If you're faced with wrapping up the affairs of a loved one who has died, you may feel overwhelmed by all the work ahead—especially when you're grieving. But with the right legal and practical information, you can do it. The Executor's Guide shows you how to get organized, get the help you need and make progress one step at a time. You will also learn how to navigate an unfamiliar land of legal procedures and terminology.

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NASGA (National Association to STOP Guardian Abuse, Inc.) is a 501(c)(3) public-interest, civil rights organization formed by victims of unlawful and abusive guardianships and conservatorships. We seek legislative reform of existing law and upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment and engaging in elder and family abuse.

Our mission is to promote the safety and well being of vulnerable persons subject to injury and damage in their person and property through unlawful and abusive guardianship and/or conservatorship proceedings; to end the growing violations of due process, civil and human rights; to work towards ultimate legislative reform of guardianship as presently practiced; upgrading of criminal penalties for court-appointed fiduciaries misusing protective proceedings for unjust enrichment; and to be a support organization for victims and their families. We carry out our mission through research, outreach, education and advocacy; and going forward, by alliance with community interest, law reform, civil rights and other advocacy organizations.

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